Healthcare briefing – Withdrawing CANH without an application to the Court of Protection
Yesterday, the Court of Protection handed down a judgment approved for publication in a decision of particular importance for healthcare providers, M (by her litigation friend, Mrs B) v A Hospital.
Mr Justice Peter Jackson ruled that a 50 year old woman who had suffered from Huntington’s disease for more than 20 years should have clinically assisted nutrition and hydration (CANH) withdrawn. M was said to have been in a minimally conscious state in a Midlands hospital.
Critically, the judgment allows, where relatives and doctors agree and all medical guidelines are being observed, for the decision on withdrawal to be made without an application to the Court of Protection.
Mr Justice Jackson said:
‘On the facts of this case, I do not consider it to have been a legal requirement for the decision to withdraw CANH to have been taken by the court.
There was no statutory obligation to bring the case to court … A mandatory litigation requirement may deflect clinicians and families from making true best-interests decisions and in some cases lead to inappropriate treatment continuing by default.
Indeed, the present case stands as an example, in that M received continued CANH that neither her doctors nor her family thought was in her best interests for almost a year until a court decision was eventually sought.’
The decision departs from a principle established in the Bland ruling in the House of Lords in 1993. The issue was unsuccessfully argued in the recent case of Paul Briggs, a 43 year old police officer who suffered a significant brain injury following a motorbike accident in 2015.
M’s application for life-sustaining treatment to be ended was heard in April. Permission for withdrawal was granted in June. On 24 July, her clinically assisted nutrition and hydration (CANH) was stopped and she died, aged 50, on 4 August. She had had the disease for more than 25 years.
The official solicitor, who intervened in the case, argued that every case on these facts should come before the courts, is likely to appeal against the decision.
The case creates a new and challenging environment for healthcare decision-makers wrestling with such weighty decisions. Despite the impact of the decision in M, recording wishes in an advanced decision or advanced statement remains the most reliable method to accurately carry out a patient’s wishes avoiding upset, cost and delay, appropriate legal advice is critical.
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This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.